A legal philosopher’s take on hysteria, conspiracy theories… and Israel’s political crisis
While threats regarding a possible civil war in Israel abound (Ukraine and Taiwan were not apocalyptic enough) as military reserves have threatened to desert, while fundamentalist commentators accuse the deep state of organizing anarchist protests against Netanyahu and his reforms, I thought now was the perfect time too actually provide an in-depth comparative analysis of the judicial reforms, what their results will be and whether the criticisms are legally sound.
If you’ll excuse me, I have to ditch some incoming grenades.
While enjoying the mostly peaceful protests, here is our legal perspective for you to read:
The basic issues
For newcomers, Wikipedia could be a good place to start if you want to understand the basics. It describes the current legal system and its background, the proposed changes, the arguments given for it and the criticisms made against it.
What it comes down to is that the coalition wishes to radically alter the current judicial order in Israel through various legislative changes. Both how judges are appointed and judicial review would be changed in favour of the parliamentary majority. Under these reforms the coalition would (de facto) control the appointment of new judges to the Supreme Court and the regular courts and also have the ability to override Supreme Court decisions through an absolute majority (61 of the 120 knesset members). Furthermore, a very high quorum would need to be reached by the Supreme Court for Judicial review with 80 % needing to vote in favour of striking down laws.
The judicial reforms have been compared to those in Poland and Hungary by its opponents and shockingly enough, apparently the Polish government had been consulted about them (for some strange reason). This was used by Progressive critics to attack it obviously. Polish Right-wingers and Israel Right-wingers against their perspective Lefts?
The arguments from both sides indeed have many similarities with the situation in Eastern Europe. Proponents argue that it ends undemocratic judicial activism and that the proposed system will be similar to existing system in Western democracies like Germany. Opponents say it amounts to a powergrab by the majority coalition.
The autistic details regarding Judicial appointments
Judges in Israel are appointed by Israeli Judicial Selection Committee. It has 9 members. 5 out of 9 members are enough to appoint judges except for the Supreme Court where 7 out of 9 judges are necessary.
The selection committee isn’t made up of a supermajority of judges or unelected officials. It is a body representing all 3 branches. That itself is in our view an excellent system. We are opposed however to the judicial branch holding an absolute veto in the appointment process, thereby making it a de facto co-optation system. When (nearly) all of the representatives of the executive and the legislative branches, the branches with democratic legitimacy, wish to appointment judges to the Supreme Court that the current judges disagree with Yet, in Israel the existing judges do have the ability to veto any appointments to the Supreme Court (as do the representatives of the executive and legislative branches but only together can they form a veto block)
Since Israel’s Supreme Court serves as a de facto constitutional court, de facto that appointment to it can be blocked by non-democratically elected officials is quite controversial. The reform proposal would expand the committee from 9 to 11 members. Another minister and another member of parliament would be added. All 3 of the members of parliament would be heads of 3 important parliamentary commissions (which are usually though not always held by the coalition) and finally the 2 judicial experts would be chosen by the minister of justice with approval of the president. This would give the coalition an absolute majority and control over the process.
While the veto control of Supreme Court appointments held by existing Supreme Court judges is indeed problematic, transferring absolute control of the process simply to the coalition is taking a highly undemocratic system and making it purely majoritarian democratic. It’s going from one extreme to the other.
Both the arguments against the current system and against the proposed reforms are correct. If the coalition wishes to establish an appointment system similar to Germany or Spain then it should actually do so; bipartisan, appointments by supermajority, and guess what? The president actually proposed something very close to this.
He supported expanding the committee to 11 members with 7 being enough for appointment, but he suggested 2 of the parliamentary members be from opposition parties.
This would mean the coalition would hold 6 positions on the committee, the opposition 2 and the Supreme Court still 3. The veto held by the existing Supreme Court judges would be broken but 1 opposition member would have to vote with the coalition.
Prime minister Netanyahu quickly dismissed the proposal saying it would preserve the current system. It wouldn’t. Again, the veto held by the current Supreme Court judges would be gone, the coalition could appoint new judges with the support of one opposition candidate. The appointment system would be bipartisan democratic. The German system. If the coalition loses a future election and the opposition comes to power this could be in their favour. What is the problem?
The president’s proposal would require 9 out of 11 members to approve of impeachment of judges. That seems valuable in ensuring judicial independence.
Underlying problems in Israel that contributed to the current crisis.
Wikipedia noted that the majoritarian nature of the judicial reforms is more controversial due to the fact that political power in Israel is already very much concentrated in a single chamber parliament.
This role of the Court in Israel has been seen by the majority of Israel, especially the left wing, as crucial for the protection of human rights in light of its otherwise weak system of checks and balances, which lacks a bicameral legislative system, a president with executive powers, a federal government, regional elections, membership in a regional supra-governmental organization, or acceptance of the International Court of Justice’s authority.
In our opinion, the first, second and fourth of these points are bad by definition. We firmly supported bicameralism and oppose parliamentary government since the legislative and executive powers get to entangled. Yet, points 1 and 2 aren’t particularly exceptional, Estonia and Hungary have unicameral parliamentary governments with a virtually powerless president (there being absolutely no regional elections is extremely unusual though). Countries like Japan and South Korea also except little influence from international courts.
Judges of the constitutional/supreme courts still tend to be politically appointed. But in unicameral systems it is indeed very rare that this would be done via simple majority. Even in Hungary a two thirds majority is required. Poland was rather exceptional in that a simple majority in the lower house choses all constitutional tribunal judges. That actually was a weakness that helped pave the way for the conflict that started after Law and Justice’s victory in late 2015.
The bigger problem truly is that Israel never implemented a full constitution. Judicial review was only developed gradually and once it did it quickly became radical, but it could always theoretically be overruled by a very hostile parliament. That situation has now arrived.
Follow the president’s proposal regarding judicial appointments
The President’s proposal could serve as good compromise regarding judicial appointments. But there is more the coalition can do to ensure long-term political stability.
Finally enact a constitution
The president suggested a constitutional process will be initiated with public participation at the President’s House where a discussion will be held on the core constitutional issues of the State of Israel, taking into account the diverse nature of Israeli society and the formulation and completion of a comprehensive Bill of Basic Rights, with broad consensus, which will be anchored in a Basic Law.
That sounds reasonable by itself.
The ruling coalition can try to find consensus or at least a compromise with the opposition. If they can get the support of 16 opposition members in parliament, they would have a 2/3 majority. Such a block could claim a mandate to implement the basis for a constitution. A basic element of this constitution would then have to be the rules regarding both judicial appointment and judicial review so that judicial power is clearly defined in a way that prevents it from either being too weak or too excessive and shields it from interference by mere parliamentary majority in the future. Simply put, the constitution should clearly define the balance of powers.
Throw religious Conservatives a proper bone without going theocratic (it’s Israel)
But another proposal by the President sounds like it could completely turn away that Far Right coalition members:
Basic Law: Human Dignity and Liberty shall formally codify the right to equality and the prohibition of discrimination; the right to freedom of expression, opinion, demonstration, and assembly
Israel has strong secular and religious factions, both Progressive and Conservative. If you’re going to de facto constitutionally enshrine non-discrimination then also properly define their limits. Maybe add marriage as the union between 1 man and 1 woman in the basic law while leaving legal room for (various) civil unions and the possibility that a supermajority in parliament could enact gay marriage at some point in the future. Define religious rights of majorities, the reach and limits of what being a Jewish state means.