Letter to Kohelet Forum on Israeli judicial reform, and their response - opinion

I am an oleh (immigrant) from South Africa and a retired advocate. I have served as an acting judge in the High Court of South Africa. I am very concerned about constitutional law and the judiciary in Israel. Although not qualified in Israeli law, I have acquired a basic knowledge of the legal and constitutional system. I have no affiliations with any organization or party and speak as an individual.

I have read the article published by the Kohelet Policy Forum on why Israel needs judicial reform and find it troubling in several respects. I am writing to you as the authors or contributors to this article.

1. You frame the work and jurisprudence of the Supreme Court in an oversimplified way and decontextualized from the constitutional system. Worse still, aspersions on the integrity of the Supreme Court judiciary are cast. Lets start here:

“In the past decades, the Supreme Court has empowered itself in a manner that completely violates the balance between government branches. In a series of decisions, the Supreme Court has changed the rules of the game and arrogated for itself jurisdiction which it was not given, some of these being exceptional by international standards.”

2. Violation of balance between the government branches? There never has been a balance in Israel. Please direct me to legal writing on the checks and balances in the status ante quo to which you advocate reverting to. The legislature enjoys complete parliamentary sovereignty. It is a unicameral system with no upper house to reconsider legislation. There is no entrenched constitutional legislation, so no law requires more than an ordinary majority to be passed. No legislative checks have ever existed nor are likely in the future. The checks are the responsibility of the judiciary. How can the legislature check itself?

3. What rules of the game were there? There never has been legislation prohibiting the court from reviewing laws. There are lacunae in Israel’s constitutional law. The law cannot operate in a vacuum. No formal constitution exists, and the court has constructed a framework built upon the Basic Laws and other sources as a quasi constitution. In Israel, very little has been done in its short years of existence to build a constitution, and it is work in progress. It may still take many more years. In the interim, Western democratic society has evolved, particularly in areas of fundamental freedoms and human rights protection. The law cannot just stay in limbo. The court has indeed created powers of review. The US Constitution also did not have provisions for judicial review. The USSC created legislative review in Marbury v Madison.

4. “In 1980 the links to the Common Law were formally abolished with the enactment of the Foundations of Law Act. This Law replaces the Common Law and Equity – the residual sources of law set by article 46 of the Palestine Order in Council – with Israeli Common Law: in case of a question brought to a court which is not answered by legislation, precedent or analogy, the court is called to apply ‘the principles of freedom, justice, equity and peace of Israel’s heritage’” (EM Salzberger: “Judicial Activism in Israel”). This is very broad. Certainly nowhere near a replacement for the English Common Law but also not inconsistent with it. Thus Common Law principles are still of persuasive force if not binding precedent. It leaves the task to fill this gap expressly to the courts. How will the reforms assist in upholding this task being preserved in the courts? Insufficient consideration has been given and by insufficient stakeholders.

5. Cognizance can therefore still be taken by the courts in Israel of English Common Law. It had a doctrine of the inherent jurisdiction of the superior courts. The South African Constitution even recognizes the role of the court to develop the common law. Section 173 reads:

“The Constitutional Court, Supreme Court of Appeal and High Courts have the inherent power to protect and regulate their own process and to develop the common law, taking into account the interests of justice.”

This is what the Israel Supreme Court jurisprudence has done, without empowering legislation or English Common Law. It did not have a formal constitution, but it has extracted the foundational constitutional values based on the principles in the Foundations of Law Act and the quasi constitutional enactments.

6. Clearly, over the past decades, the court has developed its jurisprudence quite dramatically. But there have been legislative developments which preceded and have informed the court’s activism.

But the most innovative part of the two laws are the limitations articles (Article 8 in Basic Law: Human Dignity and Liberty; and Article 4 of Basic Law: Freedom of Occupation), which read: “There shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required.” The laws, however, do not set any enforcement mechanism or provide for judicial review. They also do not specify what is the procedure for their amendment. All these questions, as well as the interpretation of the scope of rights guaranteed by them, were left to judicial development and paved the way to increasing judicial activism” (EM Salzberger: “Judicial Activism in Israel”). The court has adopted the approach of the Roman Law maxim Ubi jus ibi remedium (Where there is a right, there is a remedy). Thus to undo the remedies the court has devised in response to Article 4 would be to undermine the legislation itself.

We are driven to conclude that surely the alleged mischief of the Supreme Court sought to be remedied is to improve the flimsy constitutional law structure in Israel rather than undo the work of the judiciary which is not proactive but reactive – a response to a flawed constitutional system.

7. The judicial reforms as proposed go far beyond the status quo ante. Thus it is a retrogression, not a progression. They create far more imbalances that existed prior to the judicial changes.

8. “The Supreme Court has invented new legal grounds to review the reasonableness of government actions and even to disqualify government appointments. It has adopted interpretations that allow it to veer from the law and the legislator’s intent.”

There is no codification of grounds of review in Israel. Thus courts are guided by the law of review developed in harmony with the legal systems of constitutional democracy and, of course, the law sources referred to above. It is quite an extreme accusation to say that the court invents new grounds. What new grounds did it invent that are not found in Israeli foundational legal values?

In South Africa, the right to fair administrative action is enshrined in the Constitution. There also is the Promotion of Administrative Act of 2000, which codifies the grounds of review including unreasonableness, bad faith and much more. It would not be necessary to criticize the court if it had a codification of grounds of review available. Perhaps again the remedy lies in defining just and fair administrative action in legislation rather than accusing the court of overreaching itself.

9. The legislator’s intent is no longer supreme in a constitutional democracy. This is the point of testing rights of the court in modern jurisprudence. It stems from the notion that the constitution is supreme, and laws must conform to it. The views expressed by you are closer to legal positivism than liberal democracy. One cannot guard the rule of law, good governance and civil and human rights and, at the same time, restrict the courts from veering from the law/legislator’s intent. Your position is untenable. I need not remind you of the excesses which emanate from positivism and legislative supremacy. We experienced this in South Africa with apartheid. Parliament had no checks and balances. It could legislate as it pleased. Review was limited strictly to administrative action.

10. The Israel Supreme Court can rightly be criticized for its wide justiciability by world standards, which I agree needs reform. Not, however, drastic curtailment. It is a matter of fine tuning. As generally in law, the devil is in the detail, about which there can be reasonable debate. However, the legal profession is part of this debate and must be intrinsically involved in consultation and discussion.

11. The notion of the Supreme Court judges having declared that the Basic Laws are a constitution and can strike them down owes its origins to the failure of Israel to fill the constitutional void. Certainly, courts cannot strike down the constitution in other countries, but constitutions in other countries cannot be changed with ease and indeed not the frequency that the Basic Laws are amended in Israel.

12. Sight has also been lost of the open, protracted and inclusive discussions and participation of all stakeholders in the initial adoption of new constitutions in recent times. Useful reference can be made to the Canadian Constitution in the1980s, which prime minister Pierre Trudeau even admitted did not finally emerge in the form he expected. Similarly in South Africa, the new Constitution of 1996 was debated in a special body called CODESA (Congress for a New Democratic South Africa). After it was drawn up, it was submitted to the Constitutional Court to certify that it conformed to basic constitutional principles and values. In Israel, no such extensive constitutional discussions took place prior to some of the reforms being introduced in the Knesset; and only after prolonged demonstrations were the reforms paused and talks commenced by representatives of political parties only under the auspices of the president. Even these discussions exclude many role players. Nor were the reforms published for public comment at any stage. How can democracy be strengthened when the public is not involved in such important constitutional changes?

13. It is incorrect to state that basic principles of majority rule are violated by the court’s making “public value decisions.” It is difficult to understand how such egregiously false reasoning can emanate from trained lawyers. The court is indeed empowered to and must make public value decisions. This process started before the [Aharon] Barak era, and certainly the 1980 Foundations of Law Act gave impetus to the role of the court intervening and making “public value decisions” based on foundational values.

14. The rule of law is not being violated. It is the rule of laws that is being violated, and this is permitted in constitutional democracy. Laws have to comply with the law which includes foundational values . Legislation consists of laws but does not constitute the totality of the law. Again ,incompatible and undemocratic positivist jurisprudence is being relied upon. Even Parshat Shoftim urges judges to uphold not just the law but mishpat tzedek – the first example of judicial activism.

15. The reforms as proposed by Justice Minister Levin cannot possibly be aimed at healing the governmental system. The mere hurried attempted pushing through of far-reaching constitutional legislation such as this is most traumatic to the public, the legal profession, and the allies of Israel, too. The harsh and determined manner in which the reforms have been promoted do not show any intention of healing – but the opposite. Major divisions of historic proportions have emerged in Israeli society, including the defense and security forces. Surely, it is time to honestly ask yourself whether the legal foundations of the reforms are fundamentally flawed. Has partisan ideology clouded the vision of the reform proponents? Constitutional governance is long term and survives the government of the day. Is this just another ad hoc band-aid to the already ad hoc Israeli constitutional system?

16. My challenge is for you to reconsider your stance and consider whether the government has really done the people of Israel a fair and just service in the content and manner of the reform proposals. This letter calls upon you in the spirit of democracy, transparency and mutual respect to engage in open, honest and public discussion with those opposed to your views. The entire reform process was initiated by the Kohelet Policy Forum, and it is fair and just that it must now bear responsibility to ensure that the consequences do not become intolerable. I trust that the very least we can agree upon is that there are serious matters of principle at stake, upon which there is ample room for disagreement and modification. ■

A response to Nowosenetz: Legal reform seeks to remedy Israel’s democratic deficit

Dear Advocate Nowosenetz,

The basic principles of the legal reform have been discussed by lawyers, academics and politicians for the past 30 years. Almost all of the justice ministers in the past decades have introduced elements of the proposed reform.

Israel’s constitutional system until the Constitutional Revolution was one of parliamentary supremacy. Until the 1995 Mizrahi Bank decision, the court never claimed the power to strike down laws.

The court was never authorized to unilaterally change Israel’s constitutional structure. As a branch of government, the Supreme Court is bound to act only within the jurisdiction of the law. When the court acts without legal authority, the rule of law is violated and representative government limited. Israeli society has not reached a consensus as to what constitutes its basic values and character and therefore decided not to decide. Israel is not the only country to have an unwritten constitution. In any case, a constitution must come from the people, and not from the court. I know of no other case in a Western country in which the court declared a constitution to exist.

Justice Mishael Cheshin, in his dissent in the precedent-setting Mizrahi Bank decision, wrote: “But with all my might, I will oppose our recognition of the Knesset’s authority to enact a constitution by force of a judicial ruling, via a legal analysis of a document dating back 47 years, in reliance on disputed conceptions which have no firm roots in Israeli society. And where is the people? Should we not ask its opinion?”

The main flaw that the reform seeks to remedy is Israel’s severe democratic deficit, due to court overreach. In a country with a constitution, the constitution itself provides the grounds upon which to strike down law. Without a constitution, the grounds for judicial review essentially become the judges’ subjective worldviews.

In common-law systems, devoid of a written constitution, the courts are not empowered to strike down legislation. The guiding principle is that of parliamentary supremacy. In the UK and New Zealand, the court may at most make a declaration of incompatibility, which does not affect the force of legislation. Canada also did not have constitutional review until 1982, except on matters of jurisdiction. Even after the adoption of a constitution, the override clause was adopted to maintain the principle of parliamentary supremacy.

In the 1989 Dapei Zahav (Golden Pages) decision, justice Aharon Barak created a new standard of reasonableness, in which the court could review the content of an administrative decision, even if taken according to law, with due process and based on proper considerations. This was a new standard, radically different from the former Wednesbury standard of extreme unreasonableness. This is a widely agreed upon point, by both proponents and opponents of the new standard.

The court is also the final word on who may serve as a minister, who may be appointed to serve as political appointees, and even who may serve as prime minister. This is unique by international standards. As to the powers of the attorney-general, his/her veto power and exclusive power of representation have absolutely no basis in law. They are the result of the 1993 Deri-Pinhasi decision. Again, there is no similar institution in any democratic country. Among the most important aspects of the reform is removing the veto that judges currently have on judicial appointments to the Supreme Court. This situation is completely anomalous in democratic countries and leads to the court’s homogenization. As the court has taken a greater role in public policy, it is essential to have judges that represent every segment of the Israeli population.

As to the claim that the court may strike down Basic Laws, it is based on two faulty premises. Either the Basic Laws are strong enough to form a constitution, or they are too flimsy. It cannot be both ways. The notion that the courts may strike down Basic Laws demonstrates the ever-growing claims of the Constitutional Revolution. Barak claimed that the Basic Laws empowered the court to strike down regular laws. Nobody imagined then that the court would be able to strike down Basic Laws. Such a move would place the court at the top of the normative pyramid, denying the legislature and the public the ability to design their desired constitutional structure.

Reliance on foundational values is an extremely problematic approach, as any judge can rely on the amorphous claim of “foundational values” to advance any argument or policy. In the absence of any law or constitution, there is no objective way to identify foundational values. Such a subjective approach opens the door to arbitrariness and capriciousness.

In truth, Israel’s main balance is its system of coalition government. As opposed to other parliamentary systems such as the UK or Canada in which the electorate is divided into regions, Israel’s elections are general. While in the UK or Canada, for example, the system is winner takes all, general elections mean that every vote counts. This system, in fact, gives greater representation to minority groups. Every single government is composed of a host of parties in a coalition, forcing the government to juggle various interests to reach compromises.

In a highly ideologically divided society such as Israel, contentious public value decisions are best made through the give-and-take of the parliamentary process. Many of the most contentious issues in Israeli society do not involve denial of basic democratic rights or prevent involvement in the democratic process. They involve balances and compromises between competing interests and values.

Yours sincerely,

Adv. Avraham (Russell) Shalev

Researcher at Kohelet Forum

This is the condensed version of a longer response.