Judicial reform will give Israeli gov't limitless power to abuse citizens

If Israel’s constitutional revolution succeeds, the government will be the law. It will be able to do almost anything it thinks of in the State of Israel. Proponents of the revolution try to justify it by repeating the mantra “Israel is the only country that …” By this they mean that Israel is the only unreformed country compared with the OECD countries or of the entire world, where things run along the lines of the proposed reform. They never bother to clarify that the comparison drawn always refers to a single component. Taken as a whole, Israel indeed turns out to be “special.” But not in a good way. The majority’s ability to trample human rights and abuse Israeli citizens will have no effective limit. 

It is possible, perhaps even appropriate, to examine a modification of the balance of power between the Supreme Court and the Knesset, but it needs to be done cautiously and with discretion and, as much as possible, on the basis of broad agreement.

The judicial reform currently being advanced by Justice Minister Yariv Levin touches every significant element of Israel’s constitutional structure. If it passes, the government will be virtually omnipotent. In contrast to the separation of powers that exists in every functioning democracy – between the executive branch (the government) and the legislative branch (the Knesset) – in Israel, the line is blurred beyond distinction, and in many cases they act like a single authority.

Israeli judicial reform would give the government virtual omnipotence

Indeed, Israel’s parliamentary regime consists of several political parties; but when those parties are united around a single agenda, as in the current Knesset, the government can use the Knesset as it pleases. Furthermore, precisely because of the blackmail power of the smallest coalition parties, the government is forced, through the Knesset, to promote every political whim in order to survive.

When near-total control of the Knesset is combined with an absence of structural limitations on majority power, the risk of harm to human rights and democracy is great. And, assuredly, the proposed reform includes an array of measures that could bring us there. If the revolution succeeds, the government will enact basic laws that carry constitutional weight, which will be immune from judicial review; it will pass laws that, if struck down by the Supreme Court, will be able to re-legislate via the override clause; it will appoint only judges whose political views comport with its own, after they have aired their ideological and political wares before the Knesset (imagine how a settler fighting for his home would feel if faced with a Palestinian petition to a Supreme Court whose justices had all been appointed by a left-wing government); judicial review of legislation will be rendered all but impotent by requiring a Supreme Court super majority for nullification; it will only appoint legal advisers who won’t hassle it too much with excruciating legal dilemmas; and finally, it will neutralize the “reasonableness” test, meaning that even when it acts improperly, it will not be subject to oversight.

This is a massive reform package, a legal overhaul with many different aspects, which makes comparison of any individual component vis-à-vis other countries a half-truth at best.

Let’s take, for example, the way judges are appointed. In many countries, these are indeed appointments made by political entities; but in many of those countries, the judicial system holds considerable sway in the decision-making process. Moreover, all of those countries have written constitutions that codify the structures and procedures of governance, protect human rights, and are extremely difficult to amend. In a majority of those countries, the number of rights protected by their respective constitutions is significantly larger than in Israel, where basic laws can be changed overnight, often in a way that eviscerates them. If the Knesset were to decide tomorrow to strip the right to dignity and liberty from Basic Law: Human Dignity and Liberty, there would be no party with the capacity to intervene – to exercise review. In many of the countries where judges are appointed by political actors, there are two houses of parliament that counterbalance each other. Some of these countries are subject to the rulings of human rights courts. In other words, every governmental system runs differently. But all, without exception, have structural limitations on governmental power, and a system of checks and balances that restrains it. If the constitutional revolution succeeds, that will not be the case in Israel.

Israel is on the brink of a social-constitutional crisis. The government appears to be advancing a reform initiative that “goes all in” and fulfills the desire of a small subgroup for power that is not subject to virtually any structural limitations, and for a drastic hobbling of the authority held by the gatekeepers of Israeli democracy. At the same time, there are voices shouting “Not one inch” – parties unwilling to make even the slightest change to the system. This discourse of extremes is dangerous to Israel, and certainly to its legal system.

If a compromise is not reached, and if the scope of the reform is not toned down, there are concerns that the government will use its heightened powers to violate human rights. A fear no less than this: If the reform does not gain wider legitimacy, Israel’s judicial system will become a remote-control passed from side to side whenever a fresh round of elections results in a new government. Such a situation would undermine the judicial system’s ability to take effective action; and public trust in the system, which is already low, would hit bottom. The Israeli justice system is not perfect. It can be criticized for its sometimes excessive activism. However, so great a degree of power in the hands of the government would be a double-edged sword. Today, it is in the hands of the Right; tomorrow, it may (gasp) move to the Left. In this reality, there will only be losers.  ■

Dr. Shuki Friedman is vice president of the Jewish People Policy Institute and a lecturer in law at the Peres Academic Center. His 2023 novel We Didn’t Love Too Much was published by Yedioth Books.