Why Israel? The constitutional black hole that created the judicial crisis

The controversial judicial overhaul proposals tearing Israel apart wouldn’t happen in Australia or the US. NOAM GREENBERGER explains why.

The Israeli political divide provides competing narratives and justifications for the government’s proposed judicial reform.

Proponents argue that the activist Supreme Court has for decades overstepped its authority in order to embed a secular liberal-democratic ideology within Israeli society. According to this view, judicial reform is necessary to return the power of decision-making to the legislators.

The alternative view is that the Supreme Court is an important check on the legislative and executive power of the government. Judges are selected by a committee comprised of a majority of non-politicians (judges and legal professionals) empowered by the Knesset. The reform’s opponents argue that in the absence of a strong and independent Supreme Court, Israel may become a narrow parliamentary democracy risking its Western liberal values.

To understand why this conflict has come to a head, it is necessary to understand the fundamental structures of the state.

Israel does not have a constitution, despite a stipulation requiring one in the UN resolution that created the State of Israel and a stated intention to do so in the Declaration of Independence.

There are a variety of explanations for this failure: successive coalition governments consisting of parties with differing visions for the state; constant existential threats making the Knesset reluctant to limit its powers; and politicians who expect ongoing dominance and therefore see little reason to bind themselves to a constitution.

The failure to agree on a constitution has left the Supreme Court in a bind. On the one hand, the Declaration of Independence guarantees equal human rights and fundamental freedoms to everyone. On the other hand, the doctrine of separation of powers dictates that it is not for the Supreme Court to pre-empt the Knesset by incorporating rights and protections that have not been formally brought into law. What is the court to do when the law (or a government decision) conflicts with the values espoused in the Declaration of Independence?

A good example comes from the Kol Haam case. In 1953, the Minister of the Interior suspended two news publications for publishing items “likely to endanger the public peace” (due to their stance against providing military support to the US in case of a war against the Soviet Union).

The court overruled the ministerial decision and reinstated the papers, drawing its decision from the values articulated in the Declaration of Independence. As Professor Eli Salzberger asserts, although there was no constitutional provision to draw on, the ruling effectively “incorporates the American constitutional discourse of the First Amendment into Israeli law”.

By contrast, Australian courts have been reluctant to intervene in situations where there is no clear constitutional direction. “Unlike the case of the American Constitution, the Australian Constitution is built upon confidence in a system of parliamentary government with ministerial responsibility,” the then chief justice of the High Court, Sir Garfield Barwick, observed in 1975.

Since the 1950s, the Knesset has passed a series of piecemeal Basic Laws in an attempt to provide a constitutional framework. In 1980, it passed the Foundation of Law Act, which requires that the court decide novel cases “in the light of the principles of freedom, justice, equity and peace of Israel's heritage”. With the passing of Basic Law: Human Dignity and Liberty (1992) and Basic Law: Freedom of Occupation (1994), the Knesset brought “the spirit of the principles in the Declaration of the Establishment of the State of Israel” into law. Both these Basic Laws refer to Israel as a “democratic and Jewish state”, thereby entrusting the court with the responsibility to interpret those fundamental terms.

Criticism of the Supreme Court is aggravated by its makeup. Supreme Court judges are mostly Ashkenazi, with a disproportionately low representation of Mizrachi Jews and Israeli Arabs. It is argued that the veto power enjoyed by the Supreme Court judges sitting on the Committee for the Selection of Judges has ensured a degree of ideological consistency among the appointees. The court is thus viewed by increasingly significant segments of the population as an ideologically self-perpetuating institution.

The proposed judicial reform seeks to reset the relationship between the elected branches of government and the judiciary. Key provisions of the proposed judicial reform include giving power to the Knesset to override the Supreme Court and for the government to manage the selection of judges.

The proposals appear to empower the Knesset and ruling coalition to exercise greater control over the character and development of the state. But the Knesset has always had the power to repeal or amend its own laws (including Basic Laws). Separately, recent governments have taken steps to diversify the composition of the Supreme Court without the need for judicial reform.

So, why overhaul the system? The proposed reform may be as much policy signalling as a desire for effective change. No proposal has been made by the government for the drafting of a comprehensive constitution.

After Prime Minister Benjamin Netanyahu paused the judicial overhaul legislation in the wake of massive protests before Pesach, the government has been negotiating with the opposition. There is room to be optimistic that a compromise will be reached. Recent polls have likely dampened the coalition’s confidence of guaranteed ongoing dominance and continuing conflicts (internal and external) have brought out significant differences between coalition partners. If passed, the judicial reform would embolden coalition parties to pressure the Prime Minister to override the Supreme Court as they see fit. For 75 years, no government has been able to grapple with the key constitutional structures of Israel. There is good reason to believe that this time is no different.

Image: Avi Katz