Judicial reform is not a magic solution

The attacks on the Supreme Court are just a smokescreen for the politicians who have failed in their responsibilities.

Supreme Court Justice Noam Sohlberg at the court in Jerusalem, July 18, 2022. Photo by Noam Revkin Fenton/Flash90.
Supreme Court Justice Noam Sohlberg at the court in Jerusalem, July 18, 2022. Photo by Noam Revkin Fenton/Flash90.
Shuki Friedman. Credit: The Israel Democracy Institute.
Shuki Friedman
Dr. Shuki Friedman is vice president of the Jewish People Policy Institute and a lecturer in law at the Peres Academic Center.

The smoke hadn’t even cleared from the stun grenades used to quell the violent clashes with Eritrean migrants in south Tel Aviv last Saturday before politicians vigorously pointed to the alleged culprit: the Supreme Court.

This Pavlovian response has followed every recent crisis. An ongoing wave of murders in the Arab community? The justice system is to blame. A wave of terrorism? It’s the fault of the Supreme Court, which supposedly prevents the demolition of terrorists’ homes (it doesn’t). A total lack of governance in the Negev? The Supreme Court yet again. Protection rackets all over the country? You already know who’s responsible.

But government spokespersons would have us believe that redemption is just around the corner if only the judicial overhaul were passed. The truth is, even if it were passed, none of Israel’s chronic problems would be solved. Judicial reform is a smokescreen for the government’s ongoing failure to effectively address the challenges Israel faces. These challenges have been around for years and it is the government’s responsibility to overcome them, not the justice system.

The governing coalition does not seem to understand that the checks and balances in Israel’s system of governance do not allow the government to do whatever it pleases. Even when the government wants to implement policy and advance solutions on urgent issues—some a matter of life and death—not every policy or solution can be enacted legally.

This is because a country in which there are no reins on government activity is a potential or actual dictatorship, which cannot be accepted in a democratic nation. The law, the attorney general and the courts are meant to serve as gatekeepers that prevent us from slipping into the unrestrained exercise of power and authority.

And the truth is that the restraints the judiciary places on the government are relatively marginal. The government has the power to enact policies that will deal with the challenges above. The problem is the lack of will to enact these policies, not judicial interference.

A few examples:

Illegal immigration: Over the years, the Supreme Court has indeed intervened in government policy on this issue. It has struck down certain laws that, in its view, infringed on migrants’ freedom of movement—such as “detention” facilities—and on migrants’ proprietary rights regarding financial sanctions.

Nonetheless, the government still has many tools at its disposal to deal with the problem and facilitate the migrants’ departure from Israel. The agreement with the U.N. that Prime Minister Benjamin Netanyahu himself reached but then retracted could have been an example. There have been other opportunities, but the government failed to take advantage of them.

When the explosion came, however, no government official took responsibility. One and all, they blamed the Supreme Court for their own failures.

Lawlessness in the Negev: Violence and property crime are routine in the Negev. The “Bedouin dispersion” has been taking over territory at an increasing rate and illegal construction has reached alarming proportions. In this case, there have been a few judicial rulings that limited enforcement. But those rulings are as nothing compared to the scope of the government’s mismanagement of the region. Yet here too, the “lawyers” are blamed and the Supreme Court with them.

Demolition of terrorists’ homes: So far, this has been the most murderous year since the Second Intifada. The government and security establishment have an arsenal of tools that could be used in the fight against terrorism, but the wave continues. This is a failure of the government, yet every terror attack is automatically followed by criticism of the Supreme Court for supposedly preventing the government from fighting terrorism; for example, by limiting the demolition of terrorists’ homes. The Supreme Court in fact frequently allows such demolitions, though within certain specific limits.

Following the Eritrean riot, Justice Minister Yariv Levin pronounced, “If anyone was in doubt about why [judicial] reform is so important … they got an irrefutable answer today.” But judicial reform would have done nothing to prevent the riot, nor would it be a panacea for any of Israel’s other problems.

Supporters of reform routinely claim that the government’s capabilities would grow dramatically if only the reform were passed. The reality is that the government already has these capabilities. The reform and the attacks on the Supreme Court and the judicial system are just a smokescreen for the government officials and politicians who have failed in their responsibility to work for the good of Israeli society. No doubt, they will continue to find scapegoats and make excuses for themselves until the dark day when the judicial system is corrected to their satisfaction.

The opinions and facts presented in this article are those of the author, and neither JNS nor its partners assume any responsibility for them.
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