Judicial reform: Israel must weaken the court to let rule of law prevail

“The alternative to power is law: law freely accepted and freely obeyed. Only by observing the rule of law – law that applies equally to the rich and poor, the powerful and powerless – do we escape the tragic cycle of freedom that begets conflict that leads to chaos, resulting in the use of force that generates tyranny, the freedom of the few and the enslavement of the many.” — the late former British Chief Rabbi Lord Jonathan Sacks

Over the past few weeks, tens of thousands of Israelis, including former prime minister Yair Lapid, who was joined by his colleagues from the opposition, took to the streets in Tel Aviv to protest against Prime Minister Benjamin Netanyahu’s new government and its proposed judicial reforms.

Indignation toward Israel’s judicial reforms was predictably expressed by international media groups including The New York Times’ editorial board which presented a commentary on December 17, 2022 titled “The Ideal of Democracy in a Jewish State Is in Jeopardy.” The newspaper stated: “Moderating forces in Israeli politics and civil society are already planning energetic resistance to legislation that would curtail the powers of the Israeli Supreme Court or the rights of the Arab minority or the LGBTQ community. They deserve support from the American public and from the Biden administration.”

The curtailing of the powers of the Supreme Court is exactly what Israel needs for the rule of law to prevail.

Israel must curtail the Supreme Court's powers to let rule of law prevail

Unlike the United States of America, Israel does not have a constitution. The Knesset’s website states its concerns of failed attempts to draft a formal constitution since 1948, and the evolution of basic laws and rights, which have semi-constitutional status. The Knesset also warns that the Bill of Rights in the basic laws is unfinished.

While Israel’s power struggle unfolds in front of the world, proponents of the Jewish state’s judicial reforms, once even supported by leaders from the left, have aspired to incorporate a structure for justice similar to the United States of America.

America’s founding fathers created the US Constitution in 1788. The US Supreme Court’s role as guardian and interpreter of the 235 year old US Constitution is to deliver on the promise of equal justice under law.

The US Constitution begins with “We, the people” – the people who institute the government for the sole purpose of protecting people’s rights and at the same time limiting the powers of government through the system of separation of powers. The separation of powers between legislative, executive and judicial branches of government provides the system of checks and balances.

John Yoo, a law professor at the University of California, Berkeley explains: “The separation of powers built into the Constitution help to ensure that no branch of the government is more powerful than another. Judicial review is a key check on the power of the legislative and executive branches. Since its earliest days, the Court’s judicial review power has made it an essential arbiter for defining and protecting individual rights.”

The US Supreme Court’s best-known power is judicial review, or the ability of the Court to declare a Legislative or Executive act in violation of the Constitution. Israel can not adequately apply the judicial review without a constitution.

Eugene Kontorovich, professor at George Mason University’s Antonin Scalia School of Law reveals how Israel’s Supreme Court assumed power to strike down laws in 1992, when it claimed that the legislative body had given it that power. The problem is that the law was passed 32-21, with less than half of the Knesset voting.

“A majority of the 120-member Knesset didn’t show up to vote, not having known the court would later claim the law as a quasi-constitution,” wrote Kontrovich in a Wall Street Journal commentary. “No judiciary in the world has as far-reaching powers over government as Israel’s. The court assumed these powers in recent decades without authorization from lawmakers or a national consensus.”

Over time, this opened a gateway to eliminate all restrictions on justiciability and standing, and giving the court unbridled power to rule on any issue including policy matters impacting the economy and the political realm. The process denies lower-court proceedings or extensive independent research.

The Wall Street Journal’s editorial board entered the debate by stating: “Israel’s Supreme Court has more power than America’s but without the democratic checks. Unbound by any constitution, and loosed from requirements of standing and justiciability, Israel’s court strikes down laws that it finds merely “unreasonable,” which can cover most anything. Israel’s court even has a veto on the appointment of new justices, in contrast to the US, where the President and Senate share the appointment power.”

Democracies are based on the rule of law. The rule of law implies that no one is above the law and that the law is stable over time. Individual citizens and institutions are subject to and accountable to the rule law that is fairly applied and enforced — which is the principle of governance by law. The rule of law is a prerequisite for a well functioning market economy, necessary for individuals, companies, societies and economies to prosper.

In an interview moderated by CNN’s Richard Quest, former Bank of Israel governor Jacob Frenkel warned about the potential economic fallout of judicial reforms without being able to explain causal relationship. Similarly, hundreds of Israel’s economists, some who had opposed economic reforms during 2003 to 2005 signed an “emergency letter” sent to Prime Minister Netanyahu stating that proposed reforms would adversely impact the economy.

Moshe Koppel, chairman of the Kohelet Policy Forum provides a list of issues that the judicial reform currently under consideration in Israel’s Knesset, is trying to address, and he states:

“Specifically, if we did not know a priori the particular biases of the judges and the legal advisers, and how they aligned with our own, we would:

1. Not abide legal advisers ordering around elected officials.
2. Not wish for judges to substitute their own policy preferences for those of elected officials.
3. Not allow judges to choose their own successors, thereby perpetuating preferences possibly at odds with those of the voters.
4. Not allow judges to place themselves above the Constitution.
5. Require that an anti-majoritarian act such as striking down legislation be done by a full bench and by special majority of judges.”

“If you read the debates among the delegates at the Constitutional Convention of 1787, and then read their prescriptions for judicial power in Article III of the Constitution, it becomes clear that the last thing the 39 signers of the document wanted was for the Supreme Court to become supreme,” writes Joseph J. Ellis, an American historian. “They expected that status to belong to Congress, and a majority thought that each branch of government should decide the scope of its own authority. The last location the framers of the Constitution wished to place sovereignty in the government they created was the Supreme Court, the most unrepresentative body and the one most removed from the wellspring of ultimate authority in the people.”

Democratic nations have free, fair and honest elections. Through elections, voters give their consent to be governed by individuals that they select for the legislative branch.

On November 1, 2022, the unprecedented fifth election in four years not only affirmed Israel’s robust democracy at work, results showed voter turnout increased from 67.4 percent in the 2021 elections to 70.6 percent. More center-right voters supported the Likud coalition’s victory with 64 seats out of Israel’s 120-seat parliament. Within the Arab sector, the voter count rose from the recent historic low of 44.6 percent in 2021 to 53.2 percent in 2022.

As Israel’s legislators work to rein in the Supreme Court’s near absolute power and dedicate themselves to proper checks and balances, they would do well by working toward creating a formal constitution and “Bill of Rights” similar to America’s founding document which cement the ideals of individual liberty, limited government, and the rule of law while ensuring proper checks and balances of democratic institutions and strict laws to root out political corruption.

This principled endeavor would create a foundation instilling trust and greater confidence among citizens and voters and ensuring that no one is above the law.

Israelis, and for that matter citizens in rule of law nations around the world, would do well in heeding to the words relayed by the late Rabbi Lord Jonathan Sacks and former chief rabbi of the United Kingdom who said, “True freedom requires the rule of law and justice, and a judicial system in which the rights of some are not secured by the denial of rights to others.” ■

Natasha Srdoc, MBA and Joel Anand Samy are co-founders of the International Leaders Summit and The Jerusalem Leaders Summit. For two decades, the authors have articulated concerns about the erosion of the rule of law in the West through policy events in America and Europe, and marked by the inaugural Jerusalem Leaders Summit in 2015. The convening of justice experts and successful reform leaders in Israel emphasized the importance of accountability and transparency of democratic institutions and limited government in the West, applying checks and balances, and implementing principled measures to address political corruption.