No Supreme Court means no check on government - opinion

On the day elections were held for chairman of the Israel Bar Association, I spoke with a fellow lawyer. She confessed that she hadn’t voted in the elections for many years. What prompted her to vote now? “I vote for two reasons,” she said, “firstly for the sake of cleaning up the profession, and secondly because I am a citizen seeking to live in a democratic state.”

The sagas of who would be voted chair of the Israel Bar Association and the earlier vote to select the Knesset’s representatives to the judicial selection committee – two events that had never previously attracted significant media coverage or interest – are indications of the drama that we have witnessed over the past six months.

Recent events signal that it may have been premature to eulogize the attempted legal overhaul by the government – the core instigator of this drama. Those who counted on the talks mediated by President Isaac Herzog to lead to agreements and a cooling off, received instead a judicial selection committee that the government refuses to activate, a bill to abolish the Israel Bar Association, and statements by Prime Minister Benjamin Netanyahu advocating unilateral moves to advance judicial reform.

All the above have recharged the protest movement. Over the past six months, Deputy Prime Minister Yariv Levin has changed his approach, moving from a sudden coup to a salami technique (phased maneuver) when it comes to the main features of the judicial reform program that he initially tabled. The idea is to take one step after another until the mountain peak has been conquered and the judicial reform program is realized.

For those who are confused and still trying to understand what comes next, let us pause and take stock of what has happened until now. We can begin with a short class in civics and history: The United Nations resolution on November 29th set the conditions for the emerging Jewish State.

In lieu of a constitution

Among other things, it required the State to be democratic and to have a constitution. Israel, which accepted the requirements, elected a 120-member constituent assembly that was supposed to establish a constitution and determine government institutions. Yet, in practice, the assembly soon became the Knesset that we know today.

And what about the constitution, you may ask? The controversies that exist today were already present back then. As a compromise agreement, a professional committee was established to decide that the future constitution would be drafted, chapter by chapter, by the Knesset Constitution, Law, and Justice Committee. The first Knesset was not able to complete this process successfully and so the authority was transferred to subsequent parliaments, right up to this day.

As such, there is no constitution and Israel appears to have three branches of government: The executive, the legislative, and the judiciary. In practice, however, the State of Israel does not really have a system of checks and balances. The government controls the Knesset and it is the judiciary that checks the government.

This model of semi-democracy has led to structured chaos over the years and to judicial activism. Professor of International Law Amichai Cohen at Ono Academic College, who researches national security and democracy, has examined 66 democratic countries around the world. His findings show that the Israeli government that controls the Knesset is the most powerful elected institution in the democratic world.

At this point, you will probably stop and say that it is time to create order, yet the question remains: How? This brings us back to the attempted legal overhaul. Systemic reforms are legitimate and desirable until they become extreme and dangerous to democracy.

The government's failure

One of the steps in the proposed reform is to eliminate the “reasonableness clause.” Without going into a learned legal explanation and interpretations, this clause gives jurisdiction to the High Court to determine whether the government or a body acting on its behalf has taken into account all relevant considerations in making a decision.

Narrowing or eliminating the reasonableness clause through the bill that the government seeks to vote on by the end of the Knesset summer session, would determine that the High Court can’t interfere with the reasonableness of decisions made by the prime minister, ministers, and other senior government officials, regarding policy.

But, under the terms of the bill, the court can intervene in officials’ decisions when they violate human rights. It is worth recalling that the outline proposed by Herzog for a compromise on judicial reform supported narrowing the reasonableness clause and stated that the court should not interfere in policy decisions and ministerial appointments.

In practice, this would mean that the government can continue to look after its own interests and authorize the return as a government minister of Shas party Chairman Aryeh Deri, who was convicted in court. The High Court has in the past already disqualified Deri from serving as interior minister.

This happened in 1993, on the grounds that a minister charged with a criminal indictment is unfit to serve. However, 30 years later, the Israeli reality has not changed. Narrowing the scope of the reasonableness clause will pave Deri’s path back to the government if he chooses to take it.

Government ministers who seek to continue promoting judicial reform claim that they were elected to govern and that the court has no authority to intervene in political considerations. This argument could be accepted in theory, yet reality indicates that the picture is very different from the one the ministers are trying to paint.

This fully right-wing government has failed in every possible arena. There is no personal security, terrorism is on the rise, the economy is collapsing, and internationally the government has become persona non grata – and all this happened without the court’s interference.

Why then is it necessary to narrow the reasonableness clause? It is clear that this step is an attempt to disguise the effort to legitimize what is illegitimate and bring those who are illegitimate back to power. 

Is it reasonable that any convicted minister returns to the government table? And who would check the government on all matters related to incompetent appointments? Is it the job of the court to generate social, ethical, and moral norms? Do we want a government that will work for us or one that is focused on taking care of itself? Is the latter option reasonable?

The writer is a publishing expert at The MirYam Institute. She served as an MK in the 24th Knesset, as well as the deputy head of the Kiryat Tivon Regional Council. She is a senior lecturer in academia and a journalist.