Is judicial reform dangerous for Israeli democracy?

The government’s proposal to revise Israel’s judicial system has sparked mass outcry in some parts of Israeli society, with some claiming it could lead not only to civil war but to the demise of democracy.

Are these proposed reforms rolled out by Justice Minister Yariv Levin “essential to return a basic balance to Israel’s political system” as Kohelet’s Russel A. Shalev claims, making Israel more like the United States? Or do they “jeopardize civil liberties, economic prosperity and Israel’s international standing” as the Israel Democracy Institute stresses, turning Israel into an electoral autocracy like Hungary?

“Comparative constitutional law is being used on both sides in a very selective and sometimes manipulative way,” according to Ittai Bar-Siman-Tov, an associate professor at Bar-Ilan University’s Faculty of Law, an expert in constitutional law and legislation.

He explains that one cannot directly compare specific aspects of the reforms Levin is proposing to the situation in other countries because they do not stand on their own but must be considered as part of the whole system of checks and balances. Moreover, he adds, before adopting what exists in another country, change makers should ask what scholars in that country think about it.

“Imagine we want to reform the health system in Israel,” Bar-Siman-Tov offers. “Everyone in Israel always looks to America as our model. But in this specific field, the Israeli system is much better than the American system. Americans, if asked, would say not to make the mistake of imitating their health system.”

While supporters of the proposed reforms claim that the amendments do not deviate from the accepted norms of other democratic countries, this is only partially accurate, the professor says.

On the one hand, “most people think there is no country in the world that has a more intrusive judicial system than Israel,” says former US ambassador to Israel David Friedman, who served as an American attorney for decades. “It is fair to say there is a problem. We don’t want 15 people undermining the will of millions of people.”

On the other hand, “you cannot just choose one aspect [from each judicial system] to serve your purposes,” Bar-Siman-Tov says.

“In aggregation, these proposals suffocate the independence of the judiciary, dissolve the separation of powers among the branches of governments, and eliminate the rule of law,” according to a statement by the scholars of the Israeli Law Professors’ Forum for Democracy. “There is not a single democratic country in the world where a combination of all these arrangements exists.”

The statement continues that “in most democratic countries, there are other mechanisms in place to limit the power of the executive branch, such as a comprehensive and rigid constitution, two legislative houses, a presidential system of government, federalist structure, regional elections, or subordination to supra-national courts that protect human rights and basic democratic principles.

“In Israel, however, none of these checks and balances mechanisms exists,” the scholars say. “Selective borrowing of arrangements that strengthen the government’s power in foreign countries without the arrangements and mechanisms to balance them will create a flawed legal structure in Israel and will place it alongside countries that have experienced an acute democratic backsliding in recent years, such as Turkey, Hungary and Poland.”

What are the changes that the government has proposed? In short:

1. Changing the composition of the judicial selection committee so that the coalition has the majority. 
2. Requiring between 80% and 100% of Supreme Court judges to agree in order to render Knesset legislation unconstitutional.
3. Implementing an override clause that would allow the Knesset to overrule the court and move forward with legislation the judges have said is unconstitutional.
4. Making Basic Laws immune from judicial review, regardless of their content. 
5. Removing the ability for the courts to render decisions by the government “unreasonable.”
6. Diminishing the role of the attorney-general and government legal advisers by making the status of their legal opinions non-binding and allowing state officials to access private legal advice instead. 

How do these statutes hold up in comparison to Israel’s closest ally, America?

Israel vs. the United States

The most crucial difference between the United States and Israel is that America has a formal, written and entrenched constitution. Making amendments to the Constitution is very difficult and cannot be done by the legislative branch alone. Rather, amending the Constitution requires a two-thirds majority of both Congress and Senate; then the amendment must be passed to the states, where it must be ratified by a three-quarters majority.

“America has a constitution that protects the people from the government,” says Bar-Siman-Tov. “The government cannot change the Constitution at its own will. The United States has one of the most demanding constitutional amendment mechanisms in the world.”

On the other hand, Israel does not have a constitution. Instead, it has a series of Basic Laws, which are enacted by parliament through the regular legislative process like any law with any majority and are easily amended by parliament.

In the United States, Congress is separate and independent from the executive branch. Congressmen and senators are elected in their states, and they can vote however they want in representation of their voters. In Israel, the government controls the parliament.

“The parliament in Israel is not really independent because its members are bound by party and coalitional discipline,” meaning they have to pledge to be loyal to the coalition and categorically vote in line with the government position on all matters, explains Prof. Aeyal Gross, a faculty member in Tel Aviv University’s Faculty of Law.

“The role of an individual Knesset member, who was elected as part of his or her parliamentary party, is characterized by constant tension between two commitments: coalition and party discipline on the one hand, and independent functioning as a representative of the public on the other,” former president Reuven Rivlin wrote in 2010.

Furthermore, in the US, the legislative branch is made up of two houses, not one like in Israel. Each house is elected in a different way and at a different time. And even if both houses agree on the same version of a bill, it does not become law until the president signs it. The president, who is himself elected separately from the Senate and Congress, has veto power.

“The whole idea is to protect the people from the tyranny of the government,” Bar-Siman-Tov notes. “In Israel, we just don’t have this.”

Another difference between Israel and the US is America’s federal system. Each state has its own legislative, executive and court systems. There are also checks and balances between the states and the national government.

While in the United States judicial appointments are political, as Levin has proposed for Israel, Supreme Court judges are appointed by the president with approval by the Senate and can only be impeached by Congress.

These judges, says Friedman, have lifetime appointments, thus ultimately being free from political influence.

In contrast, Israeli Supreme Court judges are selected by a committee made up mostly of members who were not politically elected. And, as Friedman notes, the Supreme Court itself has veto power over new judicial appointments – meaning that the judges might not represent the people.

But the new reforms do a 180-degree turn, perhaps going too far, Bar-Siman-Tov explains. They give the coalition near total control over the appointment of judges.

“Lower court judges, when they want to be promoted, will be completely at the mercy of the coalition because the coalition controls appointments,” he says. “Moreover, the same committee they want to put in charge of appointing judges would also be in charge of firing judges, sending a message that if the government is not happy with their decisions, they are at risk of being fired – although by a larger majority.”

“On the one hand, our Supreme Court has enormous power. Among other groundbreaking rulings, it has compelled racial integration of public schools; determined issues that decided the presidential election of 2000; and, most recently, concluded that there exists no constitutional right to terminate a pregnancy (and therefore that each state could decide the issue for itself),” Friedman wrote in an op-ed recently published in The Jerusalem Post. “On the other hand, the Supreme Court has very limited jurisdiction; imposes strict requirements on who may have standing to sue; only takes a case if four of the nine justices agree; and must always act within the constraints of our Constitution.”

Israel vs. Canada and the European Union

The so-called “override clause” is borrowed from Canada, Gross explains.

“Canada is one of the only countries in the world that has this override clause,” he says.

But the clause does not sit in a vacuum. Rather, Canada has a Bill of Rights and a Constitution that, like in the US, are very hard to amend. These documents, as well as federal, provincial and territorial laws, protect individual human rights.

The Canadian Charter of Rights and Freedoms states: “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, color, religion, sex, age or mental or physical disability.”

In Israel, says Gross, “We want to be able to override a constitution that we do not even fully have.”

In Europe, Bar-Siman-Tov adds, there is an additional layer of protection for human rights in the European Court of Human Rights, which is charged with ensuring that states respect the rights and guarantees set out in the European Convention on Human Rights. The court’s judges sit in France and do not represent any state.

When the court determines that a member state has breached one of the rights laid out in the convention, the countries are under an obligation to comply by making changes. 

The case for Hungary 

The combination of steps that Israel wants to take are very similar to what happened in Hungary, Bar-Siman-Tov says.

“I think when you look at the reforms Yariv Levin wants to enact, it is important to look at the totality of them,” he says. “For each one of them, it is possible to say this one exists in the US or in Canada, etc. But when you look at the combination of them, they are scarily and eerily similar to what Prime Minister Viktor Orban did in Hungary.”

In 2020, Freedom House declared that Hungary could no longer be called a free democracy but only “partly free.”

After taking power in the 2010 elections … Orban’s Alliance of Young Democrats–Hungarian Civic Union (Fidesz) party pushed through constitutional and legal changes that have allowed it to consolidate control over the country’s independent institutions,” Freedom House wrote three years ago when it handed down a ranking of 70 out of 100. It said that “the government has moved to institute policies that hamper the operations of opposition groups, journalists, universities and nongovernmental organizations (NGOs) whose perspectives it finds unfavorable.”

While on the one hand, with Israel lacking a constitution, there is “no textual discipline that prevents judges from deciding matters based upon personal views and philosophies,” Friedman points out. On the other hand, the politicization of the judicial system would transform judges into “yes-sayers of the government,” and the chance that a law would ever become invalidated becomes very low, says Bar-Siman-Tov.

“If the court invalidated a law, parliament would be able to use the override clause to enact the same law without changing it by a simple majority of 61 out of 120,” Bar-Siman-Tov explains. “In the version of the bill proposed by the chair of the Constitution Committee, parliament could also enact a law in the first place that would make the law immune from judicial review.”

Gross says that when taken with the other actions already being promoted by the government, including strengthening the hold of politicians over the police and the military and a recent announcement that it plans to shutter KAN, Israel public broadcasting corporation, “the situation could very quickly deteriorate – even in a few months.”

The government and the chair of the Constitution Committee, MK Simcha Rothman, have said they plan to expedite these reforms without compromise or willingness to listen to the opposition.

“We used to think that democracy dies by a junta – a hostile takeover of the government, the killing of parliament members or the burning down of government buildings,” says Bar-Siman-Tov. “What we have learned in the last 10 to 12 years from Poland, Turkey and Hungary is that the new way democracies die is by small, incremental change done by politicians that were elected democratically.

“In Hungary, Orban used his majority in parliament to change the constitution and make important changes in judicial powers and the independence of the media,” he continues. “Through a combination of small steps, in fewer than 10 years Orban has turned Hungary from a free democracy into an electoral autocracy.”

Call for consensus

While judicial reforms are “appropriate” and “important” for Israel, Friedman says, they should be “achieved with maximal level of consensus.

“This is not a halachic [Jewish legal] issue where there is a right or wrong answer,” he stresses. “The intellectual dishonesty permeating many of the arguments is quite harmful, and the shrill rhetoric is breeding internal disunity and external embarrassment.”

He adds that the need for judicial reform should be decoupled from the people who are pushing the issue today.

Friedman says it is easy to claim that calls for reform are a power play by Prime Minister Benjamin Netanyahu, who is on trial for breach of trust, bribery and fraud, or are rooted in frustration by Shas leader Arye Deri, who was recently disqualified by the courts from being a minister due to tax fraud conviction. However, discussions about judicial change have existed since the early 1990s when Supreme Court president Aharon Barak “changed the rules of the game,” Friedman reminds.

“Everyone is quick to personalize the issue, and this should not be,” he says, adding that reforms achieved by this government could be easily reversed by the next.

At the same time, Israeli civil society is beginning to understand what is at stake, and tens of thousands of citizens have recently begun taking to the streets in protest of rushed reforms. Several hi-tech companies have threatened to pull their businesses from Israel if the current policy changes move forward.

“My hope is that with enough public pressure via legal and democratic means, the coalition will rethink its position and at least understand that if it wants to make such a sweeping constitutional revolution, it must do it in a proper process,” Bar-Siman-Tov says. “There should be a fair, deliberative, participatory process in which the government is open to hear criticisms and make amendments,” he continues. “If this happens, Israeli democracy will be saved.”   ■